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Hope - Obama (Shepard Fairey poster) (Photo credit: Steve Rhodes)

According to federal prosecutors, in early 2008, artist Shepard Fairey, 42, Los Angeles, CA, created works of art that included a stylized likeness of then-Senator Obama (which was derived from an Associated Press (“AP”) copyrighted photograph) with the words “HOPE” and “PROGRESS” below the images.

In retrospect, perhaps not the wisest move, but in 2009, Fairey sued the AP in the U.S. District Court for the Southern District of New York seeking a declaration that his Obama works did not infringe the AP’s copyrights, and that his use of an AP photograph was protected by the “fair use” doctrine of copyright law.

The key thing here to keep in mind is that Fairey started the dueling lawyers thing.

In any event, Fairey’s civil Complaint alleged that he had used a cropped image of Senator Obama from a larger photograph including actor George Clooney that was taken at an April 2006 National Press Club event. The legal theory was that under the so-called “fair use doctrine,” Fairey had a right to utilize the cropped image.

The "fair use" doctrine is codified in Title 17, United States Code, Section 107. In general, it provides that the "fair use of a copyrighted work ... is not an infringement of copyright." It further provides that, "[i]n determining whether the use made of a work in any particular case is a fair use," the following factors shall be considered:

(a) "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;"

(b) "the nature of the copyrighted work;"

(c) "the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) "the effect of the use upon the potential market for or value of the copyrighted work."

In connection with the first factor (the purpose and character of the use), there are various subfactors that are considered, specifically: (a) whether the alleged infringer acted in good or bad faith; (b) whether the alleged infringer's use was commercial; and (c) whether the alleged infringer's use was transformative.

Now, as far as legal theories go, maybe there was something to Fairey's fair use claim – then again, maybe not. All of which is the stuff of lawsuits.

But for this one troublesome problem: Fairey’s Obama image wasn’t from the purported group shot with Clooney but from another picture of Obama, albeit from the same National Press Club event; except that what Fairey used apparently came from a source image of a tightly cropped image of Obama, gazing upward, was depicted.

Federal prosecutors alleged that Fairey set out upon a relatively elaborate cover-up of the true source of his Obama image. Not only was he accused of fabricating the entire Obama-Clooney photo as his actual source for the iconic Obama image but he attempted to delete multiple electronically stored documents of the tightly cropped image of then-Senator Obama. Moreover, during the discovery phase of the lawsuit, Fairey produced the false and fraudulent documents but did not initially produce the electronic images that he had attempted to delete.

In May and July 2009, U.S. District Judge Alvin K. Hellerstein, to whom the copyright litigation had been assigned, ordered discovery and set completion deadlines, which Fairey disobeyed and resisted. Ultimately, it was determined in the copyright litigation that Fairey had

concealed his destruction of documents,

concealed his manufacture of fake documents,

suggested to an employee that a back-dated document retention policy be created to justify the deleted documents, and

coached a witness in the civil case to give an untrue account.

On February 4, 2012, federal prosecutors filed a criminal Information (read full-text) to which Fairey pled guilty. If convicted, Fairey faced a maximum prison term of six months and one year of supervised release; he also faced a fine of the greatest of $5,000, or twice the gross pecuniary gain derived from the offense or twice the gross pecuniary loss to the victims.

On September 7, 2012, Preet Bharara, the United States Attorney for the Southern District of New York, announced that Fairey was sentenced to two years of probation for committing criminal contempt of court in connection with AP litigation; ordered to complete 300 hours of community service; and ordered to pay a $25,000 fine.